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Chicago Joe's Tea Room, LLC v. Village of Broadview

September 11, 2008


The opinion of the court was delivered by: Judge Joan B. Gottschall


Before the court are cross-motions for summary judgment and cross-motions to strike certain portions of the parties' Rule 56.1 statements of fact. For the reasons stated below, defendants' motion to strike [38] and plaintiffs' motion to strike [45] are granted in part and denied in part; the defendants' motion for summary judgment [26] and the plaintiffs' motion for partial summary judgment [29] are granted in part and denied in part.


This case concerns a zoning dispute over property located in the Village of Broadview, Illinois (the "Village"); specifically, it concerns a disagreement over the constitutionality of the Village's zoning restrictions on adult use facilities.

Pervis Conway ("Conway") owns a parcel of land at 2850 Indian Joe Road in the Village, which he is under contract to sell to Chicago Joe's Tea Room, LLC ("Chicago Joe's").*fn2 The parcel of land is located in the Office and Industrial District (the "O/I district"), which is one of the classifications in the Village's comprehensive zoning code ("Zoning Code"). The stated purposes of the Zoning Code include:

To promote and protect the public health, safety, morals, comfort and general welfare of the people;

To promote the character and the stability of the residential, business and manufacturing areas within the village of Broadview and to promote the orderly and beneficial development of such areas;

To prohibit uses, buildings or structures incompatible with the character of development or intended uses within specified zoning districts.*fn3

The O/I district is a zone that provides opportunities for office and light industrial uses in an environment where setbacks and other requirements are designed to encourage quality development and minimal impact on the adjacent non-industrial uses. Certain land uses in the O/I district are, pursuant to § 10-7-4 of the Zoning Code, allowed only with prior permission of the Village board of trustees. The Village must hold a public hearing on such special use applications. The trustees may authorize the special use only if it: (1) is necessary for the public convenience at the location; (2) is designed, located and proposed to be operated so that the public health, safety and welfare will be protected; and (3) will not cause substantial injury to property values.

Chicago Joe's wants to operate an adult use business featuring semi-nude dancing and a restaurant that sells liquor at 2850 Indian Joe Road, in the O/I district. Certain types of businesses, including restaurants, banks, animal hospitals, dry-cleaning establishments, daycare facilities, and adult use facilities, are allowed in the O/I district only as a "special use."*fn4 On December 22, 2006, the plaintiffs, Chicago Joe's and Conway (collectively the "Plaintiffs"), submitted an application seeking "[p]ermission to operate an adult use facility in all adult use categories as defined in the Code of Ordinances of the Village of Broadview, permission to operate a restaurant with the ability to sell alcohol, [and] permission to operate 24 hours per day -- seven days per week[.]"*fn5

In addition to the "special use" requirements for location in an O/I zone, adult uses are also subject to certain other restrictions under § 10-4-6(D)(11), which, as of the time of Chicago Joe's zoning application, read:

Adult businesses are subject to the following:

a. It shall be unlawful for any adult business to sell, distribute, or permit beer or alcoholic beverages on the premises.

b. No merchandise or pictures of the products or entertainment on the premises shall be displayed in window areas or any other exterior area of the building or site that can be seen by the public from the outside of the building.

c. Only one adult business shall be permitted per block face.

d. Adult uses must be located a minimum of one thousand feet (1,000') from the property boundaries of any school, daycare center, cemetery, public park, forest preserve, public housing, and place of religious worship.

e. Adult uses must be located in a freestanding building of less than twenty thousand (20,000) square feet.

On February 28, 2007, the Village Planning and Zoning Commission (the "Commission") conducted a public hearing on the Plaintiffs' zoning application during which the Commission heard extensive public testimony. At the conclusion, Commissioner Keehn moved to deny the Plaintiffs' application "due to the zoning ordinance [which] set[s] forth the following standards: It shall be unlawful for any adult business to sell, distribute or permit beer or alcoholic beverages on the premises."*fn6 The motion was passed unanimously and the Commission recommended, in a written report to the Village Board of Trustees that mirrored the motion language, that adult use be denied. The Board of Trustees voted to deny permission for adult use at 2850 Indian Joe Road on March 5, 2007, concurring with the Commission's conclusions.

On April 16, 2007, The Village Board of Trustees amended certain sections of the Zoning Code, including parts of § 10-7-4 and § 10-4-6(D)(11). The Zoning Code now requires that "adult uses must be located a minimum of one thousand feet (1,000') from the property boundaries of any school, daycare center, cemetery, public park, forest preserve, public housing, residentially zoned property, and place of religious worship." Zoning Code § 10-4-6(D)(11)(d) (emphasis added to indicate amendment). The 2850 Indian Joe Road site is not located more than 1,000 feet from residentially-zoned property.

On May 11, 2007, the Plaintiffs filed suit against the Village and thirteen individuals, asking for declaratory and injunctive relief and asserting that the Zoning Code is unconstitutional. The individual defendants are: Defendant Henry Vicenik ("Vicenik"), who was the mayor*fn7 of the Village at all times relevant; Defendants Fitzgerald Mullins ("Mullins"), James Johnson, Jr. ("Johnson, Jr."), Robert Payne ("Payne"), Michael Tyl ("Tyl"), John Ferguson ("Ferguson"), and Sam D'anza ("D'anza"), who were Village trustees; and Defendants Beverly Keehm "(Keehm"), Jury Abraham ("Abraham"), Billy Davis ("Davis"), Juanita Hinton Johnson ("Johnson"), Minnie Reese ("Reese"), and Ray Donato ("Donato"), who were Village commissioners. The Village and the eleven individual defendants are collectively referred to as the "Defendants."


After an initial review of the parties' summary judgment briefs and statements of fact, the court issued a minute order requesting further briefing. The court noted that the Plaintiffs filed this lawsuit for injunctive relief on May 11, 2007. The Village Board of Trustees amended certain sections of the Zoning Code on April 16, 2007, including § 10-4-6(D)(11)(d). The original version of § 10-4-6(D)(11)(d) provided that "adult uses must be located a minimum of one thousand feet (1,000') from the property boundaries of any school, daycare center, cemetery, public park, forest preserve, public housing, and place of religious worship." The amended version included a restriction that adult uses also be located greater than 1,000 feet from "residentially zoned property."*fn8 The record showed that the property at 2850 Indian Joe Road, the proposed location of Chicago Joe's Tea Room, is less than 1,000 feet from residentially-zoned property. In light of the Plaintiffs' request for injunctive relief, the court requested further briefing on whether the amendment mooted the controversy.

The Village argues that rendering a decision on a Zoning Ordinance that is no longer in effect is inappropriate because such a decision would be merely advisory and the amendment has mooted the plaintiff's request for injunctive relief based on the defunct ordinance. See, e.g., Rembert v. Sheahan, 62 F.3d 937, 940 (7th Cir. 1995) ("The complete repeal of a challenged statute naturally renders a request for an injunction against application of that statute moot."). The Plaintiffs argue that the amendment does not remove the harm alleged; in fact, it exacerbates the unconstitutionality of the Village's Zoning Code by adding additional restrictions to the placement of adult use facilities. See, e.g., Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993) (finding that an amendment to an ordinance does not render a plaintiff's claim moot where the new ordinance disadvantages the plaintiff in the same fundamental way as the original ordinance). They also argue that the amendment fails to cure the unconstitutional prior restraints imposed by the Zoning Code's requirement to obtain a special or conditional use permit, and that its claims for declaratory relief and damages are not rendered moot by the amendment.

Curiously, neither party's argument addresses the metaphorical "elephant in the room," namely that the amendment seems to have been promulgated specifically to target Chicago Joe's and prevent it from ever operating at its chosen location. The court's own research has uncovered a factually similar case. See 754 Orange Ave., Inc. v. City of West Haven, 761 F.2d 105 (2d Cir. 1985). In 754 Orange Ave., the plaintiff ("754 Orange") applied for a preliminary injunction enjoining the city from enforcing its zoning and licensing ordinances against it and ordering the city to issue a building permit. Id. at 107. On February 24, 1984, 754 Orange applied for a building permit to renovate a building in order to conduct the business of an adult bookstore. Id. at 108. The zoning ordinances did not have a special classification for adult use and the business was arguably considered a "commercial recreational facility." Id. The applicable zoning ordinance at the time of the application (§ 32-2.7) stated that "[n]o commercial recreational facility shall be located on a property within a one-thousand (1000) foot radius of a park, playground or public or private primary or secondary school." Id. at 109. 754 Orange's premises were between 1,000 and 1,500 feet from the nearest school, park, or playground. Id. The city denied the permit without explanation. Id. On May 23, 1984, the district court ordered the city to issue a permit. Id. The city did not comply. Id. However, on June 15, 1984, the city amended § 32-2.7, increasing the minimum distance required from 1,000 feet to 1,500 feet, thereby making it categorically impossible for 754 Orange to be eligible for a permit at its current location. Id.

Following the amendment, the city moved to dismiss the case based on mootness due to 754 Orange's ineligibility for a permit under the amended section. Id. The court denied the motion, finding that the evidence suggested that the zoning amendments were made "in order to frustrate plaintiff's sale and display of sexually explicit material," which raised "a serious due process question." Id. On appeal, the Second Circuit, in part, held that "section 32-2.7 is impermissible as enacted, because its adoption strongly suggests that it was aimed solely at 754 Orange." Id. at 113. It found that the city amended the ordinance to include the premises owned by 754 Orange only after it "learned that 754 Orange's leased premises [are] beyond 1,000 feet from any school, park, or playground." Id. It reasoned that, despite an applicant's general lack of vested rights in existing zoning classifications under Connecticut law, courts "will not allow changed building zone regulations to act as a bar to a building project where it would be inequitable to do so." Id. The court noted that this principle of "equity of notice" was a legitimate concern in a First Amendment case. Id. (citing Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 80 (1976), wherein the U.S. Supreme Court observed that an amended zoning regulation was not aimed at suppression of free expression where "[t]he ordinance was already in existence, and its purposes clearly set out, for a full decade before adult establishments were brought under it"). The Second Circuit therefore refused to consider the amended ordinance because the city "did not 'adequately justif[y] its substantial restriction of protected activity' in a manner sufficient to justify its ex post facto treatment of Orange Avenue's contemplated use." Id. (quoting Avalon Cinema Corp. v. Thompson, 667 F.2d 659, 662 (8th Cir. 1981)).

Illinois also recognizes that property owners may, under certain circumstance, acquire a vested right to the continuation of an existing zoning classification, despite the general rule to the contrary. 1350 Lake Shore Assocs. v. Healey, 861 N.E.2d 944, 950 (Ill. 2006). In order to come within the purview of the exception, a land owner must have made a "'substantial change of position, [such as] expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance[.]'" Id. (quoting Fifteen Fifty N. State Bldg. Corp. v. City of Chicago, 155 N.E.2d 97 (1958)).

The exception only applies, however, where an applicant reasonably relies on the legality of the ordinance and does not apply where a land owner unreasonably relies on an invalid ordinance. Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 849 (7th Cir. 2007); City of Elgin v. All Nations Worship Ctr., 860 N.E.2d 853, 857 (Ill. App. Ct. 2006). In both Petra and All Nations, plaintiff churches had purchased property in an area that was not zoned in a manner that allowed them to operate. Petra, 489 F.3d at 847; All Nations, 860 N.E.2d. at 665. The municipalities amended the zoning ordinances to cure the perceived constitutional problems, which eliminated the churches' ability to locate in their chosen area. Petra, 489 F.3d at 848; All Nations, 860 N.E.2d. at 666. The courts rejected the churches' arguments that they had a vested interest in continuing to operate based on reliance on the facial invalidity of the zoning ordinance. Petra, 489 F.3d at 848; All Nations, 860 N.E.2d. at 669. In Petra, the Seventh Circuit noted that there was no basis "for the proposition that the federal Constitution forbids a state that has prevented a use of property by means of an invalid (even an unconstitutional) enactment to continue to prevent that use by means of a valid one." Petra, 489 F.3d at 849. In All Nations, the Illinois Appellate Court reasoned that "vested rights are acquired by attempting to comply with an ordinance as written. . . . Here, however, All Nations proceeded in violation of the zoning ordinance as written [under the assumption it would be found invalid]." All Nations, 860 N.E.2d. at 668 (emphasis in original).

The Seventh Circuit recently reaffirmed its rejection of "the notion that a property owner may rely on purported defects in prior versions of the law as the springboard to claim a vested interest in property use for which it never obtained permission." Gen. Auto Serv. Station v. City of Chicago, 526 F.3d 991, 1005 (7th Cir. 2008) (discussing the similarities of its holding in Petra and the Illinois Appellate Court's holding in All Nations). Thus, the ability of a municipality to adopt a curative amendment to an invalid zoning ordinance and thereby attempt to moot an applicant's claim is beyond question. The issue, therefore, is whether the Village's amendment of § 10-4-6(D)(11)(d) was intended to be curative.

The Defendants' own arguments seem to belie such a finding. For example, the Defendants contend that the pre-amendment version of § 10-4-6(D)(11)(d) was constitutionally valid as a content-neutral "time, place, and manner regulation." See Defs.' Mem. in Supp. of Mot. for Summ. J. at 8 (citing a version of the Zoning Code promulgated in November 2001 in support); id. (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54 (1986), which concluded that an ordinance that prohibited adult movie theatres within 1,000 feet of any residential zone, single or multi-family dwelling, church, park, or school was constitutional); Defs.' Rule 56.1 Statement of Material Facts, Ex. 3A (Zoning Code, dated November 2001). Leaving aside for the moment the issue of whether the Defendants' argument is correct, the amendment itself also suggests that the Village was not attempting to rectify any perceived constitutional infirmity. For example, the amended § 10-4-6(D)(11)(d) further restricted the availability of land for adult use, which is the opposite result to that expected of an attempt to rectify an ordinance that impermissibly infringed on protected speech. The court therefore concludes that the Village was not attempting to rectify any weaknesses in its Zoning Code when it extended the reach of § 10-4-6(D)(11)(d).

In reaching this conclusion, the court is cognizant of the equities. The amendment made Chicago Joe's categorically ineligible for a permit. Pls.' Statement of Facts ¶ 36. Chicago Joe's entered a contract to purchase the property from Conway after concluding that the location met with the requirements of § 10-4-6(D)(11)(d) in that it was "a minimum of one thousand feet (1,000') from the property boundaries of any school, daycare center, cemetery, public park, forest preserve, public housing, and place of religious worship." See id. ¶ 35. Chicago Joe's spent considerable time, effort, and money to locate a suitable property and secure the contract. See Letter to Steven Luzbetak, Esq., attached to Verified Compl. (detailing terms of contract and non-refundable earnest money paid). After Chicago Joe's applied for a permit and a public hearing was held, it came to light that Chicago Joe's chosen location met the requirements of the original § 10-4-6(D)(11)(d), but was within 1,000 feet of family homes. Consequently, the Village amended its zoning ordinance to exclude adult use facilities from locations that were within 1,000 feet of homes, which coincidentally included the proposed site for Chicago Joe's. The record does not disclose that the Village conducted any studies on the effect of adult use facilities within 1,000 feet of residential neighborhoods and the amended ordinance contains no findings to explain the rationale for the amendment.*fn9

In light of these facts, the adoption of the amendment strongly suggests that it was not intended to be curative, but rather was aimed solely at Chicago Joe's, similar to the targeted amendment in 754 Orange Ave. Under these circumstances, the reasoning of Petra and All Nations is inapplicable. Pursuant to the reasoning of the Second Circuit in 754 Orange Ave., the court holds that Chicago Joe's had acquired a vested right in the continuation of § 10-4-6(D)(11)(d) during the pendency of its application.*fn10 Therefore, the fact that Chicago Joe's could not, under the current version of § 10-4-6(D)(11)(d), occupy 2850 Indian Road is irrelevant to the merits of the summary judgment motions, to which the court now turns.


The Defendants move to strike portions of the Plaintiffs' Local Rule 56.1(a) Statement of Facts for lack of reference to the record and reliance on inadmissible evidence. The Plaintiffs move to strike the affidavit of Michael Hoffman, attached as Exhibit 7 to the Defendants' Local Rule 56.1(b)(3)(B) Statement of Additional Facts, for failure to establish the foundation for the opinions and conclusions.

A. The Defendants' Motion To Strike [38]

1. Lack Of Reference To The Record

The Defendants argue that several paragraphs of the Plaintiffs' Statement of Material Facts violate Local Rule 56.1 because they lack a reference to the record. The Rule requires the moving party to submit a statement of material facts that "consist[s] of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." L.R. 56.1; see also Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997) (emphasizing the need for concrete evidence in support of asserted material facts). The court's standing order emphasizes this requirement. See Standing Order Regarding Motions for Summary Judgment ("This statement shall consist of short numbered paragraphs, including within each paragraph specific references to affidavits, parts of the record, transcript excerpts and other supporting material." (emphasis in original)), The standing order states that "if a movant submits a 56.1(a)(3) statement that does not include specific evidentiary support for a given purported 'material fact,' thereof, that 'fact' may be disregarded." Id.

a. Paragraphs 33, 39, and 55

The Plaintiffs admit that they failed to cite to the record in two instances, specifically paragraphs 39*fn11 and 55,*fn12 and the court finds that paragraph 33*fn13 suffers from a similar infirmity. They reason that the paragraphs should, nevertheless, not be stricken because they "do not contain legal conclusions but set forth facts entirely within the purview of Defendants which could be answered without placing any hardship on the Defendants to ascertain their accuracy." Pls.' Resp. to Defs.' Mot. to Strike at 5. This statement is fundamentally flawed. A motion for summary judgment is no place for a party to be conducting discovery. The Plaintiffs should have obtained evidence supporting the statements long ago by means of requests to admit or deposition testimony. A party's failure to obtain the necessary discovery it needs to prove its case does not excuse non-compliance with the rules of the court. See Int'l Union, United Auto, Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 886 F.2d 871, 886 (7th Cir. 1989) ("[The court's] ...

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